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Madhya Pradesh High Court · body

2012 DIGILAW 603 (MP)

Kammu @ Kamlesh v. State of M. P.

2012-06-26

N.K.GUPTA

body2012
JUDGMENT 1. The appellant has preferred this appeal against the judgment dated 22.11.1997 passed by Sessions Judge, Raisen in S.T.No.97/1993, whereby the appellant was convicted for offence punishable under section 354 of IPC and sentenced for one year’s Rigorous Imprisonment. 2. Prosecution’s case, in short, is that, on 13.1.1993, at about 12.30 p.m., the prosecutrix (P.W.1) went to the river near village Dhokheda, Police Station Bareli, District Raisen to take bath. When she was wearing her clothes after taking bath, the appellant came from back side and threw the prosecutrix on earth. On her shouting, the appellant closed her mouth but, in the meantime, younger brother of the prosecutrix came to the spot and therefore, the appellant ran away. The prosecutrix went to her house with her brother and informed about the incident to her parents. Thereafter, she had lodged an FIR, Ex.P/1, before Police Station Bareli. She was sent for her medico legal examination and treatment. Dr. H.P.Singh (P.W.4) after her examination gave a report, Ex.P/4, in which he found 4-5 simple injuries to the victim. On 23.1.1993, the prosecutrix had submitted a written report to SDOP, Bareli that actually a rape was committed with her and she could not understand that in word “Bura Kaam”, police will not consider the case of rape. Thereafter, case was registered for offence punishable under section 376 of IPC. After due investigation, challan was filed before JMFC, Bareli and it was duly committed to the Sessions Court, Raisen. 3. The appellant abjured from his guilt. He took a plea that he was falsely implicated in the matter. However, no defence evidence was adduced by the appellant. 4. After considering the prosecution’s evidence, learned Sessions Judge, acquitted the appellant from the charges of offence punishable under section 376 of IPC but, convicted him for offence punishable under section 354 of IPC and sentenced him as mentioned above. 5. Heard the learned counsel for the parties at length. 6. Learned counsel for the appellant submits that the appellant is falsely implicated in the matter. If the prosecutrix could not be believed for offence punishable under section 376 of IPC then, she could not be believed for offence punishable under section 354 of IPC. In alternate, it is submitted that according to the accused statement, age of the appellant was 23 years at the time of the incident. He was not a matured man. If the prosecutrix could not be believed for offence punishable under section 376 of IPC then, she could not be believed for offence punishable under section 354 of IPC. In alternate, it is submitted that according to the accused statement, age of the appellant was 23 years at the time of the incident. He was not a matured man. He has faced the trial and present appeal for the last 19 years and therefore, it would not be appropriate to send him again to the jail. 7. On the other hand learned Panel Lawyer has submitted that conviction and sentence is appropriate. 8. Prosecutrix (P.W.1) has stated about the offence of rape in her statement. However, her mother Tulsa Bai (P.W.2) and Hari Singh (P.W.3), brother of the prosecutrix were examined. Though they were not the eye witnesses, however, Tulsa Bai has admitted that her daughter informed about the incident. Report was lodged according to the narration of the prosecutrix given to her but, after 15 days of lodging the FIR, when no action was taken by the police in the case, therefore, due to anger a second FIR was lodged by the prosecutrix. It is true that the prosecutrix has exaggerated the matter in her second FIR, Ex.P/6 but, FIR Ex.P/1 was an FIR which was lodged within 2-3 hours after the incident, whereas, police station was 3 kms away from the spot. The prosecutrix came to the house of her parents after the incident, told the story to her parents and thereafter, she was taken to the police station and therefore, time of 2-3 hours is reasonable in lodging the FIR. Under such circumstances, FIR appears to be in time. Evidence of the prosecutrix relating to offence punishable under section 354 of IPC is also confirmed by her injuries proved by Dr.H.P.Singh (P.W.4). Under such circumstances, if the prosecutrix has exaggerated the matter by subsequent FIR then, her testimony relating to original FIR cannot be thrown. 9. The prosecutrix has informed the story to her parents and thereafter, she had lodged an FIR accordingly. There is no enmity shown by the appellant with the prosecutrix so that she could lodge a false FIR against the appellant. Under such circumstances, learned Sessions Judge has rightly believed the prosecutrix and convicted the appellant for offence punishable under section 354 of IPC. There is no enmity shown by the appellant with the prosecutrix so that she could lodge a false FIR against the appellant. Under such circumstances, learned Sessions Judge has rightly believed the prosecutrix and convicted the appellant for offence punishable under section 354 of IPC. There is no reason by which any interference can be done in the conviction directed by the trial Court for that offence. 10. As far as the sentence is concerned, it is true that the appellant was 23 years old person at the time of incident but, there is no ground including his age for grant of benefit of probation to him. However, he has faced the trial and this appeal for 19 years and therefore, looking to his harassment for such a lengthier period, it would be proper not to send him to jail again but, looking to the nature of crime, some fine may be imposed upon him, so that compensation may be granted to the prosecutrix. 11. On the basis of the aforesaid discussion, appeal filed by the appellant is partly allowed. Conviction directed against him for offence punishable under section 354 of IPC is hereby maintained but, his jail sentence is quashed. In lieu of jail sentence, a fine of Rs.7,500/- is imposed upon the appellant. He is directed to deposit the fine amount before the trial Court within two months from today. In default of payment of fine amount, he shall undergo for six months rigorous imprisonment. In case of deposit of the fine amount, the prosecutrix shall be entitled to get a sum of Rs.5,000/- out of that fine amount. Name of the prosecutrix is not mentioned here to maintain the secrecy of the case but, the trial Court is directed to mention her name in fine Register-A and arrange for payment of compensation to the prosecutrix. 12. Presence of the appellant is no more required before this Court therefore, it is directed that his bail bonds shall stand discharged. 13. Copy of the judgment be sent to the trial Court with its case file for information and compliance.